Winterbottom & Jardine

[2023] FedCFamC1F 912

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Winterbottom & Jardine [2023] FedCFamC1F 912

File number:

SYC 6423 of 2023

Judgment of:

HENDERSON J

Date of judgment:

26 October 2023

Catchwords:

FAMILY LAW – NULLITY – Consent – Where the applicant asserts he was mentally incapable to consent to the marriage on the basis of mental disorders and learning difficulties – Where the respondent filed a Submitting Notice – Finding the applicant was not mentally incapable – Formalities – Where the applicant asserts certain requirements under the Marriage Act 1961 (Cth) were not complied with – Where such non-compliance does not invalidate a marriage – Application for nullity dismissed – No order as to costs.

Legislation:

Family Law Act 1975 (Cth) s 51.

Marriage Act 1961 (Cth) ss 23B, 23B(1), 23B(1)(d)(iii), 42, 42(1)(a), 42(5), 42(5A), 42(10), 46, 48.

Cases cited:

AK and NC (2004) FLC 93-178; [2003] FamCA 1006.

Pannos & Fotinos [2020] FamCA 102.

Division:

Division 1 First Instance

Number of paragraphs:

29

Date of hearing:

On the papers

Place:

Sydney – in Chambers

Solicitor for the Applicant:

Hammond Nguyen Turnbull

The Respondent:

Litigant in person (Did not participate)

ORDERS

SYC 6423 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WINTERBOTTOM

Applicant

AND:

MS JARDINE

Respondent

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	26 OCTOBER 2023

THE COURT ORDERS THAT:

1.The Initiating Application filed 30 August 2023 is dismissed.

2.There be no order as to costs.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonyms Winterbottom & Jardine has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HENDERSON J:

INTRODUCTION

1. This is an application for a declaration of nullity of a marriage filed by the applicant, Mr Winterbottom, on 30 August 2023. The respondent, Ms Jardine, has submitted to the application and agrees that the Court should make the declaration sought.

2. Although the parties had executed a Minute of Order for the declaration to be made, a declaration such as this is not a matter of consent by parties and requires the Court to make a finding that the marriage is void within the meaning of section 51 of the Family Law Act 1975 (Cth) (“Family Law Act”) and only then to make the resulting declaration. To that…